Lt. Col. Gael Singh Yadav vs Satish Chand Yadav
1998 Latest Caselaw 623 Del

JUDGMENT

S.K. Mahajan, J.

1. Defendants No. 14 & 16 have filed this application for amendment of their application under Section 151 of the Code of Civil Procedure being IA No. 1328/97. The brief facts resulting in the filing of this application were:

That the plaintiff filed suit for partition of HUF in which the said defendants had 1/12th share each. The applicants/defendants No. 14 & 16 had appointed Mr. M.P. Yadav as their attorney to contest the suit in this Court. On 4th April, 1989 a statement as made by Mr. Yadav in this Court for and on behalf of defendants No. 13 to 16 that out of the free Will and instructions from defendants No. 13 to 16 he was making this statement that out of the share of each of the defendants No. 13 to 16 to which they were entitled l/60th may be given to the plaintiff Lt. Col. G.S Yadav (Retired). On the basis of this statement this Court on 16th April, 1989 passed a preliminary decree specifying the shares of the parties in suit in the property.

2. Sometimes late in 1992 Justice D.R. Khanna (Retired) was appointed as Commissioner to suggest the mode of partition and it appears that Justice D.R. Khanna (Retd.) made two groups of parties and suggested that the properties be partitioned in two shares giving 60% to one group of parties and 40% to the other group of parties and respective plans were also submitted to Justice D.R. Khanna (Retd.), Report has also been filed by Justice D.R. Khanna (Retd.) in this Court.

3. Before the objections to the report of the Local Commissioner could be decided, the applicants/defendants No. 14 & 16 filed an application in this Court being I .A. No. 7801/95 stated inter-alia that Mr. M.P. Yadav, their attorney, was not authorised to make statement on their behalf giving up their 1/60th share and that he had acted in collusion and conspiracy with the plaintiff in depriving the applicants of their due share in the property. Before the said application could be decided the applicants herein made another application being IA No. 1327/92 for amendment of IA No. 7801 /95. By order dated 21.10.1997 this Court allowed the application for amendment and consequently IA No. 7801 /95 stood amended and the amended application has now been numbered as IA No. 1328/97.

4. In the earlier application for amendment applicants had taken the plea that the application under Order 23, Rule 3, C.P.C. when a claim is adjusted by any lawful agreement of compromise, the compromise must be in writing and signed by the parties. There being no agreement in writing in the present case, the preliminary compromise decree was sought to be set aside on this ground as well.

5. The reason for filing the present amendment application is that if this Court holds that amended provisions of Order 23, Rule 3, C.P.C. are not applicable in the facts and circumstances of the case, since the suit was filed prior to amendment of Order 23, Rule 3, C.P.C. in that event the preliminary decree passed on the basis of the statement of the attorney of the plaintiff will be void on account of the same having not been registered in accordance with Section 17 of the Registration Act. It is stated that the statement of the Attorney of the applicants is void for want of registration and the same could not, therefore, be the basis of preliminary decree.

6. In his reply the plaintiff has opposed this application on the ground that the preliminary decree was passed in April, 1991 when the learned Commission had also filed his report after holding discussion with the parties in February and May, 1994. It is stated that the Court had started hearing arguments on objections to the report of the Commissioner in January, 1995 when defendants No. 14 & 16 with a view to delay the proceedings in this Court filed an application being IA No. 7801 / 95 for re-opening the preliminary decree dated 19.4.1989. IT is stated that the present application is mala fide and is intended to further delay the disposal of the matter which had already been delayed for more than a decade after passing of the preliminary decree in April, 1989. On these grounds the plaintiff has prayed that the application of the defendants is not only a misuse of the process of law but the same is also mala fide.

7.1 have heard the learned Counsel for the parties. The amendment which is now sought in. the application is wholly legal. What the applicants want to amend is that the attorney of the applicants could not make statement as the same was hit by provisions of the Registration Act. It is stated that the said statement of the attorney is void for want of registration as a part of immovable property of the value of more than Rs. 100/- was sought to be relinquished and the decree on that basis could not be operative in favour of the plaintiff with outregistration. The Compromise decree is, therefore, void and not effective.

8. It is no doubt true that the application is belated and some delay will be caused in the disposal of the case. However, in my view the delay in itself cannot be a ground for refusal of the amendment. Mr. Rawal wanted me to go into the question that the amendment is wholly without any merit inasmuch as even if the plea is taken as correct, and original application cannot be allowed. In my view the Court at the time of deciding the amendment application will not go into the merits of the amendment. At the time of deciding the application for amendment the Court has only to see whether the amendment sought is relevant for deciding the matters in controversy between the parties or not. The applicants in their original application have challenged the preliminary decree on the ground that they have been deprived of their share in the property by collusion and conspiracy and that there was no authority with the attorney to transfer the shares of the applicants to the plaintiff. Another ground which is now sought to be taken in the application by way of amendment is that the statement of the attorney cannot be acted upon and decree could not be passed as it was hit by the provisions of Registration Act. In my view, by this amendment the applicants are not changing the nature of their case and the amendment even otherwise is relevant and necessary for deciding the matters in controversy in IA No. 1328/97. Moreover, the amendment is legal and no prejudice will be caused to the plaintiff in case the same is permitted to be made in the application. I, therefore, allow this application subject to payment of Rs. 2,000/- as costs.

9. Amended application be filed within 2 days. Reply to the amended application be filed within one week thereafter. Rejoinder, if any, be filed before the next date of hearing.

Put up on 17.9.1998.

Earlier costs of Rs. 1,000/- has been paid to the Counsel for the plaintiff.